General Terms and Conditions of Finestra International

These terms and conditions apply to every offer, quotation and agreement between Finestra International, hereinafter referred to as the “User”, and a Client to which the User has declared these terms and conditions applicable, insofar as the parties have not expressly departed from these terms and conditions in writing.

These terms and conditions also apply to agreements with the User for the performance of which third parties must be involved by the User.

These general terms and conditions are also written for the employees of the User and its management.

The applicability of any purchasing or other terms and conditions of the Client is expressly rejected.

If one or more provisions of these general terms and conditions are at any time wholly or partially null and void or annulled, the remaining provisions of these general terms and conditions shall continue to apply in full. The User and the Client shall then enter into consultation in order to agree new provisions to replace the void or annulled provisions, observing as far as possible the purpose and intent of the original provisions.

If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation must be made ‘in the spirit’ of these provisions.

If a situation arises between the parties that is not governed by these general terms and conditions, that situation must be assessed in the spirit of these general terms and conditions.

If the User does not always require strict compliance with these terms and conditions, this does not mean that their provisions do not apply, or that the User would in any way lose the right to require strict compliance with the provisions of these terms and conditions in other cases.

All quotations and offers of the User are without obligation, unless a period for acceptance is stated in the quotation. If no acceptance period is stated, no right whatsoever can be derived from the quotation or offer if the product to which the quotation or offer relates is no longer available in the meantime.

The User cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.

The prices stated in a quotation or offer are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless stated otherwise.

If the acceptance deviates (whether or not on minor points) from the offer included in the quotation or offer, the User is not bound by it. The agreement is then not concluded in accordance with that deviating acceptance, unless the User indicates otherwise.

A composite price quotation does not oblige the User to perform part of the assignment for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.

The agreement between the User and the Client is entered into for a definite period, unless the nature of the agreement dictates otherwise or unless the parties expressly agree otherwise in writing.

If a period has been agreed or stated for the performance of certain work or for the delivery of certain goods, this is never a strict deadline. In the event that a period is exceeded, the Client must therefore give the User written notice of default. The User must be given a reasonable period in which to still perform the agreement.

The User shall perform the agreement to the best of its insight and ability and in accordance with the requirements of good workmanship, all on the basis of the state of knowledge known at that time.

The User has the right to have certain work performed by third parties. The applicability of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.

If work is carried out in the context of the assignment by the User or by third parties engaged by the User at the Client’s location or at a location designated by the Client, the Client shall provide free of charge the facilities reasonably required by those employees.

Delivery takes place ex works of the User. The Client is obliged to take delivery of the goods at the moment they are made available. If the Client refuses to take delivery or fails to provide information or instructions necessary for the delivery, the User is entitled to store the goods at the Client’s expense and risk. The risk of loss, damage or depreciation passes to the Client at the moment the goods are made available to the Client.

The User is entitled to perform the agreement in different stages and to invoice the part performed separately.

If the agreement is performed in stages, the User may suspend the performance of those parts belonging to a subsequent stage until the Client has approved the results of the preceding stage in writing.

The Client shall ensure that all data which the User indicates are necessary, or which the Client should reasonably understand to be necessary for the performance of the agreement, are provided to the User in good time. If the data required for the performance of the agreement are not provided to the User in good time, the User has the right to suspend performance of the agreement and / or to charge the Client for the additional costs resulting from the delay at the rates then customary. The performance period does not commence until the Client has made the data available to the User. The User is not liable for damage of any kind whatsoever arising because the User relied on incorrect and / or incomplete data provided by the Client.

If during the performance of the agreement it appears that it is necessary to amend or supplement it for proper performance, the parties shall adjust the agreement in good time and by mutual agreement. If the nature, scope or content of the agreement is changed, whether or not at the request or instruction of the Client, of the competent authorities and so on, and the agreement is thereby changed in qualitative and / or quantitative terms, this may have consequences for what was originally agreed. As a result, the amount originally agreed may also be increased or decreased. The User shall provide a price quotation in advance as far as possible. An amendment to the agreement may also change the performance period originally stated. The Client accepts the possibility of amendment of the agreement, including the change in price and performance period.

If the agreement is amended, including by way of a supplement, the User is entitled to perform it only after that. If there is additional work alongside the agreed work, this shall be charged to the Client separately by the User at the rates then applicable. Failure to perform the amended agreement, or failure to perform it immediately, does not constitute a breach of contract on the part of the User and is no ground for the Client to terminate or cancel the agreement.

Without thereby being in default, the User may refuse a request to amend the agreement if this could have qualitative and / or quantitative consequences, for example for the work to be performed or the goods to be delivered in that context.

If the Client fails to properly perform what it is obliged to do towards the User, the Client is liable for all damage on the part of the User arising directly or indirectly as a result.

If the User agrees a fixed fee or fixed price with the Client, the User is nevertheless entitled at all times to increase that fee or price without the Client being entitled to terminate the agreement for that reason, if the price increase results from a power or obligation under laws or regulations, or is caused by an increase in the price of raw materials, wages and so on, or on other grounds that were not reasonably foreseeable when the agreement was entered into.

If the price increase, other than as a result of an amendment to the agreement, amounts to more than 10% and takes place within three months of the conclusion of the agreement, only a Client entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by written statement, unless the User is then still willing to perform the agreement on the basis of what was originally agreed; if the price increase results from a power or an obligation of the User under the law; if it has been stipulated that delivery will take place more than three months after the conclusion of the agreement; or, in the case of delivery of goods, if it has been stipulated that delivery will take place more than three months after the purchase.

The User is entitled to suspend performance of its obligations or to terminate the agreement if the Client does not, does not fully or does not timely perform its obligations under the agreement, if circumstances that come to the User’s knowledge after the conclusion of the agreement give good grounds to fear that the Client will not perform its obligations, if the Client was asked upon conclusion of the agreement to provide security for the performance of its obligations under the agreement and that security is not provided or is insufficient, or if due to the delay on the part of the Client the User can no longer be required to perform the agreement on the originally agreed terms.

The User is furthermore entitled to terminate the agreement if circumstances arise of such a nature that performance of the agreement is impossible, or if other circumstances arise of such a nature that unaltered continuation of the agreement cannot reasonably be required of the User.

If the agreement is terminated, the User’s claims against the Client are immediately due and payable. If the User suspends performance of its obligations, it retains its rights under the law and the agreement.

If the User proceeds to suspension or termination, it is in no way obliged to compensate any damage and costs arising in any way as a result.

If the termination is attributable to the Client, the User is entitled to compensation for the damage, including the costs, arising directly and indirectly as a result.

If the Client fails to perform its obligations arising from the agreement and this non-performance justifies termination, the User is entitled to terminate the agreement immediately and with immediate effect, without any obligation on its part to pay any damages or compensation, while the Client, on the grounds of breach of contract, is obliged to pay damages or compensation.

If the agreement is cancelled prematurely by the User, the User shall, in consultation with the Client, arrange for the transfer of work still to be performed to third parties. This does not apply if the cancellation is attributable to the Client. If the transfer of the work entails additional costs for the User, these shall be charged to the Client. The Client is obliged to pay these costs within the period stated, unless the User indicates otherwise.

In the event of liquidation, of (an application for) suspension of payment or bankruptcy, of attachment — if and insofar as the attachment has not been lifted within three months — against the Client, of debt restructuring or any other circumstance as a result of which the Client can no longer freely dispose of its assets, the User is free to cancel the agreement immediately and with immediate effect, or to cancel the order or agreement, without any obligation on its part to pay any damages or compensation. The User’s claims against the Client are in that case immediately due and payable.

If the Client cancels an order placed, in whole or in part, the work performed and the goods ordered or prepared for it, increased by any supply, transport and delivery costs thereof and the working hours reserved for the performance of the agreement, shall be charged to the Client in full.

The User is not obliged to perform any obligation towards the Client if it is prevented from doing so as a result of a circumstance that is not due to its fault, and which is not for its account by virtue of the law, a legal act or generally accepted practice.

In these general terms and conditions, force majeure means, in addition to what is understood by it in law and case law, all external causes, foreseen or unforeseen, over which the User has no influence but as a result of which the User is unable to perform its obligations. This includes strikes in the User’s business or in that of third parties. The User also has the right to invoke force majeure if the circumstance preventing (further) performance of the agreement occurs after the User should have performed its obligation.

If it has been agreed that the User will treat a glass surface by either polishing or grinding, and the surface concerned cracks or breaks despite careful treatment by the User, this damage falls entirely under the responsibility of the Client. No claim for compensation can be made against the User, nor will the Client owe the User payment for this specific part of the agreement. The other parts of the agreement shall remain in full force.

For the duration of the force majeure, the User may suspend the obligations under the agreement. If this period lasts longer than two months, either party is entitled to terminate the agreement, without any obligation to compensate the other party for damage.

Insofar as the User has, at the time force majeure occurs, already partly performed its obligations under the agreement or will be able to perform them, and the part performed or still to be performed has independent value, the User is entitled to invoice the part already performed or still to be performed separately. The Client is obliged to pay this invoice as if it concerned a separate agreement.

Payment must always be made within 14 days of the invoice date, in a manner to be indicated by the User and in the currency in which the invoice was issued, unless the User has indicated otherwise in writing. The User is entitled to invoice periodically.

If the Client fails to pay an invoice on time, the Client is in default by operation of law. The Client then owes interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest is due. Interest on the amount due shall be calculated from the moment the Client is in default until the moment the full amount due is paid.

The User has the right to apply payments made by the Client first to the costs, then to the interest fallen due, and finally to the principal sum and current interest. The User may, without thereby being in default, refuse an offer of payment if the Client designates a different order of allocation of the payment. The User may refuse full repayment of the principal sum if the interest fallen due, current interest and collection costs are not also paid.

The Client is never entitled to set off amounts owed by it to the User. Objections to the amount of an invoice do not suspend the payment obligation. A Client that cannot invoke Section 6.5.3 (Articles 231 to 247 of Book 6 of the Dutch Civil Code) is likewise not entitled to suspend payment of an invoice for any other reason.

If the Client is in default or in breach of the (timely) performance of its obligations, all reasonable costs of obtaining payment out of court shall be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method of the Dutch Decree on compensation for extrajudicial collection costs (“Besluit vergoeding voor buitengerechtelijke incassokosten”). If, however, the User has incurred higher collection costs that were reasonably necessary, the costs actually incurred qualify for compensation. Any judicial and enforcement costs incurred shall likewise be recovered from the Client. The Client also owes interest on the collection costs due.

Everything delivered by the User in the context of the agreement remains the property of the User until the Client has properly performed all obligations under the agreement(s) concluded with the User.

What has been delivered by the User and falls under the retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The Client is not authorised to pledge or otherwise encumber what falls under the retention of title.

The Client must always do everything that may reasonably be expected of it to safeguard the User’s property rights. If third parties levy attachment on the goods delivered under retention of title, or wish to establish or assert rights to them, the Client is obliged to inform the User immediately. The Client further undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft, and to make the policy of this insurance available to the User for inspection on first request. In the event of any payment under the insurance, the User is entitled to those monies. Insofar as necessary, the Client undertakes in advance towards the User to cooperate with everything that may be necessary or desirable in that context.

Should the User wish to exercise the property rights referred to in this article, the Client gives unconditional and irrevocable consent in advance to the User and to third parties designated by the User to enter all those places where the User’s property is located and to repossess it.

The goods to be delivered by the User meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in normal use in the Netherlands. The warranty referred to in this article applies to goods intended for use within the Netherlands. In the event of use outside the Netherlands, the Client must itself verify whether their use is suitable for use there and whether they meet the conditions set for it. In that case the User may set different warranty and other conditions with regard to the goods to be delivered or the work to be performed.

The warranty referred to in paragraph 1 of this article applies for a period of 14 days after delivery, unless the nature of what has been delivered dictates otherwise or the parties have agreed otherwise. If the warranty provided by the User concerns goods produced by a third party, the warranty is limited to that provided by the producer of the goods, unless stated otherwise.

Any form of warranty lapses if a defect has arisen as a result of or follows from injudicious or improper use, or use after the expiry date, incorrect storage or maintenance by the Client and / or by third parties, when the Client or third parties have made or attempted to make changes to the goods without the User’s written consent, have attached other items to them that should not be attached, or if they have been processed or treated other than in the prescribed manner. Nor is the Client entitled to warranty if the defect has arisen as a result of circumstances over which the User has no influence, including weather conditions (such as, for example but not exclusively, extreme rainfall or temperatures) and so on.

The Client is obliged to inspect (or have inspected) what has been delivered immediately at the moment the goods are made available to it, or the work concerned has been carried out, as the case may be. In doing so, the Client must examine whether the quality and/or quantity of what has been delivered corresponds to what has been agreed and meets the requirements agreed between the parties in that respect. Any visible defects must be reported to the User in writing within seven days of delivery. Any defects that are not visible must be reported to the User in writing immediately after their discovery, but in any event no later than fourteen days after delivery. The report must contain as detailed a description of the defect as possible, so that the User is able to respond adequately. The Client must give the User the opportunity to investigate (or have investigated) a complaint.

If the Client complains in good time, this does not suspend its payment obligation. In that case the Client also remains obliged to take delivery of and pay for the other goods ordered and for what it has instructed the User to do.

If a defect is reported at a later stage, the Client is no longer entitled to repair, replacement or compensation.

If it is established that goods are defective and a complaint has been made in good time, the User shall, at its option, replace the defective goods, arrange for their repair or pay substitute compensation to the Client, within a reasonable period after their return or, if return is not reasonably possible, after written notification of the defect by the Client. In the event of replacement, the Client is obliged to return the replaced goods to the User and to transfer title to them to the User, unless the User indicates otherwise.

If it is established that a complaint is unfounded, the costs arising as a result, including the investigation costs, incurred on the part of the User, shall be borne by the Client.

After expiry of the warranty period, all costs of repair or replacement, including administration, shipping and call-out costs, shall be charged to the Client.

Contrary to the statutory limitation periods, the limitation period for all claims and defences against the User and the third parties involved by the User in the performance of an agreement is one year.

If the User is liable, this liability is limited to what is set out in this provision.

The User is not liable for damage of any kind whatsoever arising because the User relied on incorrect and / or incomplete data provided by or on behalf of the Client.

If the User should be liable for any damage, the User’s liability is limited to a maximum of twice the invoice value of the order, or at least to that part of the order to which the liability relates.

The User’s liability is in any event always limited to the amount paid out by its insurer in the relevant case.

The User is liable solely for direct damage.

Direct damage is understood to mean exclusively the reasonable costs of establishing the cause and extent of the damage, insofar as the assessment relates to damage within the meaning of these terms and conditions; any reasonable costs incurred to make the User’s defective performance conform to the agreement, insofar as these can be attributed to the User; and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to a limitation of direct damage as referred to in these general terms and conditions. The User is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business interruption.

The limitations of liability set out in this article do not apply if the damage is due to intent or gross negligence on the part of the User or its managerial subordinates.

The Client indemnifies the User against any claims from third parties who suffer damage in connection with the performance of the agreement and the cause of which is attributable to others than the User. If the User should be held liable by third parties on that basis, the Client is obliged to assist the User both out of court and in court and to do without delay everything that may be expected of it in that case. Should the Client fail to take adequate measures, the User is entitled, without notice of default, to do so itself. All costs and damage on the part of the User and third parties arising as a result shall be entirely for the account and risk of the Client.

The User reserves the rights and powers to which it is entitled under the Dutch Copyright Act and other intellectual property laws and regulations. The User has the right to use the knowledge gained on its part through the performance of an agreement for other purposes as well, insofar as no strictly confidential information of the Client is thereby disclosed to third parties.

Dutch law applies exclusively to all legal relationships to which the User is a party, even if an obligation is performed wholly or partly abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.

The court in the User’s place of business has exclusive jurisdiction to hear disputes, unless the law mandatorily prescribes otherwise. Nevertheless, the User has the right to submit the dispute to the court having jurisdiction under the law.

The parties shall only appeal to the court after they have made every effort to settle a dispute by mutual agreement.

These terms and conditions have been deposited with the Chamber of Commerce in Breda.

The version most recently deposited, or the version that applied at the time the legal relationship with the User was established, always applies.

The Dutch text of the general terms and conditions is always decisive for their interpretation.